Ruth Marcus

Washington, D.C.

Ruth Marcus is deputy editorial page editor for The Post. She also writes a weekly column. Marcus has been with The Post since 1984. She joined the national staff in 1986, covering campaign finance, the Justice Department, the Supreme Court and the White House. From 1999 through 2002, she served as deputy national editor, supervising reporters who covered money and politics, Congress, the Supreme Court and other national issues. She joined the editorial board in 2003 and began writing a regular column in 2006. A graduate of Yale College and Harvard Law School, she was a finalist for the Pulitzer Prize for Commentary in 2007. She lives in Maryland with her husband, Jon Leibowitz, their two daughters and the world’s cutest dog. Honors & Awards:
  • Finalist, Pulitzer Prize for commentary, 2007
Recent Articles

RUTH MARCUS COLUMN

Advance for release Friday, April 16, 2021, and thereafter

(For Marcus clients and FOR PRINT USE ONLY)

For Print Use Only.

By Ruth Marcus

WASHINGTON -- The debate over increasing the number of Supreme Court justices feels like Filibuster 2.0, except more unrealistic, more dangerous and less necessary.

As with eliminating the filibuster, expanding the court may feel good to propose, but it's not going to happen -- indeed, court-packing, pardon the phrase, is even less likely to be implemented than filibuster-dumping. Getting rid of the filibuster would require the votes of just 50 senators, which Democrats currently lack. The other is a nonstarter absent the votes to do away with the filibuster, as even its advocates admit, and even then would face a further uphill climb.

Just as a world without the filibuster would end up empowering Republicans to ride roughshod over Democrats, an expanded Supreme Court would end up hurting its proponents by unleashing subsequent waves of retaliation. Expanding the court by four justices would solve the immediate problem for liberals, replacing a 6-to-3 conservative majority with a 7-to-6 liberal one. But why would a Republican congressional majority -- when one is, inevitably, in power -- let that stand. Where would the expansion stop?

Indeed, it's far harder to make the case for sticking with the filibuster than for living with the current nine-justice court. The counter-majoritarian downside of the filibuster is embedded and unchanging. By contrast, there is nothing inherently wrong or frustrating about a nine-justice court -- just this nine-justice court. Nine isn't etched in stone, or written in the Constitution, but it's a workable number that has passed the test of history.

And, unlike the conundrum over how to fix the filibuster, there is an alternative solution for the court that would be more effective, and fair, over time than expansion.

Halfway measures with the filibuster -- in particular, making it more onerous to block legislation by forcing those who wage a filibuster to be present on the Senate floor -- are worth trying, but ultimately won't solve the problem of letting a determined minority block the will of the majority.

But imposing term limits for justices, although more difficult to implement than a change in Senate rules, would, over time, create a court that is better balanced ideologically and more in sync with the public mood. There may be methods short of a constitutional amendment to achieve term limits, such as having justices pledge to serve specific terms or assigning them to other federal courts after a set period.

So when Brian Fallon of Demand Justice, which has been leading the charge for court expansion, calls that "the only way to restore balance to the court and protect our democracy," he's wrong.

A pause here to say to Fallon and his allies: I feel your fury. The current court has been double-packed by Republicans -- first by the GOP's refusal to let President Barack Obama fill the vacancy left by the death of Justice Antonin Scalia 11 months before Obama's term expired; second by the insistence on pushing through a replacement for Justice Ruth Bader Ginsburg when she died less than seven weeks before the 2020 election.

So it is hard to swallow Republicans' professions of horror at Democratic efforts to game a system that they already manipulated to their advantage. For Senate Republican Leader Mitch McConnell, R-Ky., to open his floor speech Thursday on the expansion proposal by claiming that "time and again, prominent Democrats show that they're no longer content to work within the ground rules and norms of our institutions" is particularly rich. Where were ground rules and norms when Merrick Garland was nominated?

Some of the arguments Democrats presented for expanding the court in the name of good government were laughable. "Nine justices may have made sense in the nineteenth century when there were only nine circuits . . . and so many of our most important federal laws -- covering everything from civil rights, to antitrust, the internet, financial regulation, health care, immigration, and white collar crime -- simply did not exist, and did not require adjudication by the Supreme Court," said House Judiciary Committee Chairman Jerrold Nadler, D-N.Y. "But the logic behind having only nine justices is much weaker today, when there are 13 circuits. . . . Thirteen justices for thirteen circuits is a sensible progression."

Oh, come on. The justices are not overworked. In the early 1980s, the justices decided about 150 cases every term. By 2007-2008, that had fallen to 70. Last term, the number was just 59 -- with the fewest signed decisions in 100 years.

The more honest argument for court expansion is redress. "Republicans stole the court's majority, with Justice Amy Coney Barrett's confirmation completing their crime spree," said Sen. Edward J. Markey, D-Mass. Expanding the number of justices "will restore the court's balance and public standing and begin to repair the damage done to our judiciary and democracy."

Fact check: half true. The court's balance would be restored -- but at what institutional cost, and for how long?

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Ruth Marcus' email address is ruthmarcus@washpost.com.

RUTH MARCUS COLUMN

Advance for release Sunday, April 11, 2021, and thereafter

(For Marcus clients and FOR PRINT USE ONLY)

For Print Use Only.

By Ruth Marcus

WASHINGTON -- The music is ominous, the mood dark. A man, face obscured, lowers a cigar from his lips, smoke curling in sinister wisps. "Far-left billionaires and liberal dark money groups went all in," the narrator intones. "They spent record amounts electing Biden, building the Democrats their bare majority in the Senate."

Silhouetted in a hallway, a man and woman shake hands. "And now, they are getting what they paid for," the narrator continues. "A bench of radical, activist judges." A judge's gavel comes down, a hand reaches out to take a wad of bills. "Paying back secret donors. Ignoring the Constitution. It's no way to pick judges."

Exaggeration in the service of ideology is no surprise. Blatant hypocrisy is a bipartisan sport, so widespread that it would be impossible to decry every instance. But this new ad, from the conservative Judicial Crisis Network, is 30 seconds of the purest political chutzpah, now airing in Arizona, Georgia, West Virginia and the District.

To understand why requires understanding the operations of the Judicial Crisis Network and a web of allied groups that have spent millions over the past several decades to transform the federal judiciary into a conservative force. Millions in "dark money" donations that come from, yes, "secret donors."

If this is "no way to pick judges," it is precisely the way that the Judicial Crisis Network, its president, Carrie Severino, and one of its founders, former Federalist Society executive vice president Leonard Leo, pioneered and perfected.

And, by the way, the people who turned membership in the conservative Federalist Society into a prerequisite for entrance into the federal judiciary, the ones who worked assiduously during the Trump administration to confirm a record 10 judges deemed "not qualified" by the American Bar Association, have some nerve labeling President Joe Biden's first 11 picks "politicians in robes, who would transform the country, ignore the people, and shred the Constitution."

But back to dark money. As The Post reported in 2019, Leo is a wizard at "raising money for nonprofits that under IRS rules do not have to disclose their donors. Between 2014 and 2017 alone, [Leo and his allies] collected more than $250 million in such donations, sometimes known as 'dark money,' according to a Post analysis of the most recent tax filings available." Tens of millions of dollars of this was spent in the service of confirming Republican judicial nominees, including Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

For the Judicial Crisis Network to inveigh against "secret donors" on judicial nominees is mighty rich. Perhaps they could tell us who wrote the $17 million check that came from a single mystery donor in 2017-2018.

It is true that dark money comes in shades of gray. Secret money to groups like the Judicial Crisis Network is less pernicious that secret money aimed at directly influencing federal elections. The new Judicial Crisis Network ad cites a 2021 Bloomberg report on $145 million in dark money donated to groups backing the Biden campaign, far in excess of what GOP-aligned entities spent to help President Donald Trump.

This would be a stronger argument if the Judicial Crisis Network and its allies supported efforts, championed by Democrats, to shine light on such secret spending -- now included in H.R. 1, the sprawling election and ethics reform measure now pending in the Senate.

Instead, these conservatives, led by Senate Minority Leader Mitch McConnell, R-Ky., have done their best to prevent additional disclosure requirements. Democrats "realized they couldn't shut up their critics" and "decided to go after the microphone instead, by trying to scare off the funders," McConnell said in 2012.

But McConnell & Co. don't simply want to prevent new disclosure rules; they want to cut back on existing reporting requirements.

Consider this friend-of-the-court brief filed by McConnell in a pending Supreme Court case. The dispute involves a conservative challenge to a California requirement that nonprofits operating in the state disclose to its attorney general the identities of donors -- but not to release them to the public.

"This Court's continued, wrongheaded deference to campaign finance disclosure requirements simply has no application here," advises the brief, written by Donald McGahn, White House counsel for Trump who, in his role as chief judge-picker, worked closely with the Judicial Crisis Network. In the McConnell-McGahn view, transparency when it comes to campaign contributions is not an important element of effective democracy; it is a "misguided" exception.

Finally, a few words on these supposed "radical" judges. They look different from Trump's picks, for sure. Nine of the 11 are women; nine are people of color. Four are former public defenders; four are former federal prosecutors.

Consider the three appeals court nominees, all Black women. One, U.S. District Judge Ketanji Brown Jackson, named to the D.C. Circuit seat vacated by Attorney General Merrick Garland, was confirmed by the Senate in 2013 by voice vote, meaning that no Republican senator objected. Candace Jackson-Akiwumi, nominated to the federal appeals court in Chicago, attended Princeton University and Yale Law School. Tiffany Cunningham, nominated to the U.S. Court of Appeals for the Federal Circuit, the specialized court that hears patent claims, is a graduate of MIT and Harvard Law School.

If the Judicial Crisis Network wants to convince anyone that these are "politicians in robes," it's going to have to come up with more than scary music and wild smears.

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Ruth Marcus' email address is ruthmarcus@washpost.com.

RUTH MARCUS COLUMN

Advance for release Sunday, March 28, 2021, and thereafter

(For Marcus clients and FOR PRINT USE ONLY)

By Ruth Marcus

WASHINGTON -- The tableau of Georgia Gov. Brian Kemp signing a new elections law said it all: six White legislators flanking the Republican governor, his pen poised above a gleaming wood table. Behind them, a painting of the white-columned Callaway Plantation.

Not shown: the enslaved people who once picked cotton and raised livestock on the 3,000-acre plantation.

Not shown, either: Black state legislator Park Cannon, arrested by White state troopers after she knocked repeatedly to gain entrance to the bill-signing. Among other things, the new law makes it a crime -- yes, a crime -- to provide water or food to people waiting in line to vote.

Welcome to 2021, where Republicans have embarked on a national effort to suppress the vote at all costs. And, not to avoid the obvious, to suppress Black votes, because those ballots would not be cast to Republican advantage.

"Un-American," President Joe Biden called it at his news conference Thursday, and he was right. "It's sick. It's sick."

It's also a product of GOP desperation to retain or regain power. Alice O'Lenick, chairwoman of the Gwinnett County election board, didn't mince words about the need to tighten up voting rules in Georgia. After the "terrible elections cycle" in 2020, when Republicans lost both Georgia Senate seats and Biden won the state's electoral votes, "I'm like a dog with a bone," she told fellow Republicans in January. "I will not let them end this session without changing some of these laws. They don't have to change all of them, but they've got to change the major parts so that we at least have a shot at winning."

Conservative lawyer Michael Carvin, representing the Republican National Committee in an Arizona voting rights case before the Supreme Court earlier this month, was equally transparent -- and transactional. When Justice Amy Coney Barrett asked why the RNC was involved in the case -- in particular, why it had an interest in preventing people from having their votes counted if they were cast in the wrong precinct -- Carvin didn't bother to pretend this was about anything other than partisan politics.

"Because it puts us at a competitive disadvantage relative to Democrats," he said. "Politics is a zero-sum game, and every extra vote they get through unlawful interpretations of [the Voting Rights Act] hurts us."

A shot at winning. Politics as zero-sum game. Proof positive that this isn't about the phantom menace of voter fraud. It's about making it as hard as possible for voters who aren't inclined in Republicans' favor to have their ballots cast or counted. You can debate whether the impact on voters of color is an intended feature or a problematic bug, but it's an undeniable reality.

The new Georgia law stands as Exhibit A in the 2021 campaign to curtail voting rights but will not be the year's last. Its final form was not quite as repulsive as initial proposals. Provisions to end early voting on Sundays -- which happen to be "souls to the polls" turnout days at Black churches -- were dropped. Weekend voting hours were expanded instead.

However, the final product makes it overall harder to vote, not easier. It increases voter identification requirements for casting absentee ballots. It limits the use of mobile polling places and drop boxes (they can't be located outdoors or available outside regular business hours). It bars state officials from mailing unsolicited absentee ballots to voters and likewise prevents voter mobilization groups from sending absentee ballot applications to voters or returning their completed applications. It compresses the time period before runoff elections and, in doing so, eliminates guaranteed weekend early voting hours in such elections.

Most astonishingly, the new law criminalizes giving food or drink to those waiting in line to vote, on the apparent theory that this could somehow corruptly influence voters. Here's an idea: Make it a crime to force people to wait in long lines to exercise their right to vote.

As a lawsuit filed by voting rights groups to challenge the Georgia law noted, polling places in majority-Black neighborhoods make up just one-third of Georgia polling places, but accounted for two-thirds of those that had to stay open late to accommodate long lines in the June primary. According to the suit "the average wait time in Georgia after polls were scheduled to close was six minutes in neighborhoods that were at least 90% white, and 51 minutes in places that were at least 90% nonwhite."

Which underscores the point: These restrictions operate to the particular detriment of Black voters, who tend to have less access to acceptable forms of identification, have jobs that make it harder to get to the polls during business hours and live in neighborhoods with fewer polling places and longer lines.

Perhaps these restrictions, and their discriminatory impact, could be justified if there were a need to impose them. There isn't. Not a clear one, not any one at all, except for the baseless frenzy over stolen elections and widespread fraud whipped up by Donald Trump and his allies. As Georgia's Republican Secretary of State Brad Raffensperger -- now the named defendant in the lawsuit -- said in January, the state conducted "safe, secure, honest elections" during the 2020 cycle.

This small-minded new law is a dangerous cure in search of a nonexistent problem -- unless the problem is that the more people get to cast their votes, the more Republicans lose.

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Ruth Marcus' email address is ruthmarcus@washpost.com.

About
Ruth Marcus is deputy editorial page editor for The Post. She also writes a weekly column. Marcus has been with The Post since 1984. She joined the national staff in 1986, covering campaign finance, the Justice Department, the Supreme Court and the White House. From 1999 through 2002, she served as deputy national editor, supervising reporters who covered money and politics, Congress, the Supreme Court and other national issues. She joined the editorial board in 2003 and began writing a regular column in 2006. A graduate of Yale College and Harvard Law School, she was a finalist for the Pulitzer Prize for Commentary in 2007. She lives in Maryland with her husband, Jon Leibowitz, their two daughters and the world’s cutest dog.
Awards
  • Finalist, Pulitzer Prize for commentary, 2007
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